Abstract: Corporate charters and bylaws sometimes limit where shareholders can sue. These
forum terms are commonplace in sophisticated commercial contracts. Their migration into
corporate documents, however, set off a fight about the balance between private ordering and
public restraint in corporate law. This essay and the Article to which it responds propose
alternative analyses of the corporate “contract” and the state’s role in defining it. Both also
wrestle with how to translate these fundamental concepts into advice for the judges and litigants
on the ground. This essay looks at the benefits of existing protections—fiduciary duties and
reasonableness limits. It then broadens the lens to consider how a heightened consent
mechanism might accommodate the nuances in this area. This approach takes concerns about
consent seriously, but also takes into account the need to balance respect for private ordering
with the state’s special role in organizing and governing corporations.

en_US

dc.language.iso

en_US

en_US

dc.publisher

Seattle: Washington Law Review, University of Washington School of Law